515 U.S. 753, 778–82 (1995)
Capitol Square is a 10-acre, state-owned plaza surrounding the statehouse in Columbus, Ohio.1 For over a century the square has been used for public speeches, gatherings, and festivals advocating and celebrating a variety of causes, both secular and religious.2 Ohio Admin. Code Ann. § 128-4-02(A) (1994) makes the square available for use by the public for free discussion of public questions or for activities of a broad public purpose, and Ohio Rev. Code Ann. § 105.41 (1994) gives the Capitol Square Review and Advisory Board responsibility for regulating public access.3 To use the square, a group must simply fill out an official application form and meet several criteria, which concern primarily safety, sanitation, and noninterference with other uses of the square, and which are neutral as to the speech content of the proposed event.4
In November 1993, after authorizing a state Christmas tree and granting a rabbi's application for a menorah, the Board received an application from respondent Donnie Carr of the Ohio Ku Klux Klan to place a cross on the square from December 8 to December 24, 1993.5 The Board denied that application on December 3, informing the Klan by letter that the decision to deny was made upon the advice of counsel in a good faith attempt to comply with the Ohio and United States Constitutions.6
Two weeks later, the Ohio Klan, through its leader Vincent Pinette, filed suit in the United States District Court for the Southern District of Ohio seeking an injunction requiring the Board to issue the requested permit.7 The District Court determined that Capitol Square was a traditional public forum open to all without any policy against freestanding displays, that the Klan's cross was entirely private expression entitled to full First Amendment protection, and that the Board had failed to show that the display of the cross could reasonably be construed as endorsement of Christianity by the State.8 The District Court issued the injunction, after which the Board permitted the Klan to erect its cross, and later entered summary judgment in the Klan's favor.9
On appeal by the Board, the United States Court of Appeals for the Sixth Circuit affirmed the District Court's judgment.10 The Supreme Court granted certiorari to consider whether the State’s denial of the Klan’s application to display its cross on Capitol Square was a denial of equal access in violation of the First Amendment and whether the State’s asserted justification for the denial—that it had a compelling interest in avoiding an appearance of endorsement of religion under the Establishment Clause—could be sustained.11
Whether the State’s denial of the Klan’s application to display its cross on Capitol Square was a denial of equal access in violation of the First Amendment?12
The government may not regulate speech based on its substantive content or the message it conveys.13 In a traditional public forum the government may impose reasonable content-neutral time, place, and manner restrictions, but it may regulate expressive content only if such regulation is narrowly drawn to achieve a compelling state interest.14 Private religious speech receives full First Amendment protection equivalent to secular speech.15
Yes. Capitol Square is a traditional public forum because for over a century the square has hosted public speeches, gatherings, and festivals advocating and celebrating a variety of causes both secular and religious.16 The Board’s policy permits a broad range of speakers and unattended displays when applications satisfy neutral criteria focused on safety, sanitation, and noninterference.17 Petitioners concede that the Board rejected the display precisely because its content was religious.18
The District Court found no policy against freestanding displays and determined that the cross constituted private expression entitled to full protection.19 The Court of Appeals affirmed that judgment.20 No content-neutral restriction supported the denial.21
The State’s denial violated the Free Speech Clause of the First Amendment by engaging in impermissible viewpoint discrimination against private religious expression in a traditional public forum.22
Related opinions on this issue
Justice Thomas joined the Court’s conclusion that the exclusion cannot be justified on Establishment Clause grounds.23 He emphasized that the Establishment Clause is not a license for government to censor private religious speech and was intended to prevent government coercion of religion rather than to suppress private expression.24 In his view the Klan’s cross constituted private speech in a public forum that the State may not prohibit based on religious content.25
Thomas further observed that the cross served primarily as a political symbol of white supremacy and intimidation rather than purely religious worship, suggesting the case may not have truly implicated the Establishment Clause at all.26
Whether the State’s asserted justification for the denial—that it had a compelling interest in avoiding an appearance of endorsement of religion under the Establishment Clause—could be sustained?27
Compliance with the Establishment Clause constitutes a compelling state interest capable of justifying content-based speech restrictions.28 Private religious speech that is purely private and occurs in a traditional or designated public forum, publicly announced and open to all on equal terms, does not violate the Establishment Clause.29
No. The cross display was entirely private expression by the Klan in a forum the District Court found open to all without any policy against freestanding displays.30 The State did not sponsor the expression, the forum had been opened to the public for speech, and permission was requested through the same application process required of other private groups including those that erected a menorah and a Christmas tree.31 The presence of signs identifying the sponsor as the Ku Klux Klan would make clear to a reasonable observer that the cross was private speech.32 The State’s fear that observers would mistakenly attribute the message to the government does not justify content-based discrimination when the forum is genuinely public and widely used as such for many years.33
The State’s asserted Establishment Clause justification could not be sustained because private religious speech in an open public forum does not constitute government endorsement.34
Related opinions on this issue
Joined by Souter, Breyer
Justice O’Connor concurred in the judgment and joined Parts I, II, and III of the Court’s opinion.35 She maintained that the endorsement test asks the right question about governmental practices challenged on Establishment Clause grounds, including challenged practices involving the display of religious symbols, even where a neutral state policy toward private religious speech in a public forum is at issue. On these facts she concluded there was no realistic danger that the community would think the State was endorsing religion or any particular creed.36
O’Connor noted that an adequate disclaimer could further clarify the private nature of the display but was not constitutionally required given the open character of the forum and the neutral application process.37
Joined by O’connor, Breyer
Justice Souter concurred in the judgment while limiting his agreement with the plurality’s per se rule.38 He agreed that in some circumstances an intelligent observer might mistake private unattended religious displays for government speech.39 Yet on these facts he concluded the State could have avoided any appearance of endorsement through a sufficiently large and clear disclaimer or by restricting all private unattended displays to a marked area.40 Because the Board had flatly denied the permit rather than adopting a narrowly tailored alternative, Souter found the denial unconstitutional.41
He stressed that the Establishment Clause inquiry must remain contextual rather than categorical.42
Joined by Ginsburg (part I)
Justice Stevens dissented, arguing that the Establishment Clause creates a strong presumption against unattended religious symbols on public property near the seat of government.43 He maintained that the unattended cross standing alone in front of the statehouse conveyed a message of government endorsement of Christianity regardless of private sponsorship.44 Stevens rejected the public-forum doctrine as overriding the Establishment Clause and contended that the State has a compelling interest in avoiding the appearance of endorsing religion.45
He viewed the history of other displays in the square as insufficient to dispel the inference of endorsement created by a large Latin cross placed directly before the capitol.46
Justice Ginsburg joined Part I of Justice Stevens’s dissent.47 She emphasized that the large Latin cross stood alone and unattended in close proximity to the statehouse, the government’s flags, and its statues, with no human speaker present to disassociate the symbol from the State.48 No plainly visible disclaimer informed the public that the cross belonged to the Klan and that Ohio did not endorse the message.49
Ginsburg concluded that permitting such a display violated the Establishment Clause’s aim of uncoupling government from church.50